R. v. Khan, 2022 ONSC 7310

COURT FILE NO.: CR-22-32

DATE: 20221230

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ALIM ELLIOTT KHAN

Defendant

Alice Pan for the Crown

Rony Palleschi for the Defendant

HEARD: December 7, 2022

ruling on Mr. Khan’s STAY APPLICATION

C. boswell j.

[1] Persons charged with criminal offences in Canada have a constitutional right to be tried within a reasonable period of time. Mr. Khan says this right has been infringed in his case and he asks that the court enter a stay of the proceedings against him.

[2] In 2016, the Supreme Court of Canada established a ceiling on constitutionally acceptable delay for cases tried in this court at 30 months. See R. v. Jordan, 2016 SCC 27. The 30-month ceiling was intended to account for a wide variety of factors that might impact on the time needed to prosecute cases tried in this court. It did not account for, nor even anticipate, the impact of the COVID-19 pandemic.

[3] This case is one of many prosecutions that have been delayed by the pandemic and the limitations on court operations that it necessitated.

[4] Mr. Khan faces a 14-count indictment. The first of the charges against him were laid on November 26, 2018. His trial is scheduled to commence on February 5, 2023 and is projected to be completed by February 10, 2023. The span between the time charges were first laid and the anticipated completion of the trial is therefore 50.5 months, well above the Jordan ceiling.

[5] The Crown argues that COVID-related delays should not be counted against the 30-month ceiling. When those delays are removed from the calculus, the Crown says, this trial will come in well under the ceiling.

[6] Defence counsel agrees that COVID-related delays do not count against the 30-month ceiling but only where there is an evidentiary basis to conclude that delays (1) were actually caused by the pandemic and (2) the Crown and court took reasonable steps to mitigate the delay. He says that evidentiary basis is missing here. In the result, very little of the purported COVID-related delay is properly deducted from the 50.5 months of total delay. The result is a period of delay well beyond the Jordan ceiling.

[7] The following reasons explain why I am satisfied that the delay in this case remains within constitutionally tolerable limits.

R. v. JORDAN AND THE DELAY ANALSIS

[8] As Jordan makes clear, timely justice is a barometer of the general health of the criminal justice system. It is of central importance to a number of stakeholders, including accused persons, victims and the broader community.

[9] Prior to Jordan, s. 11(b) applications were governed by the framework set out in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771. The Morin framework directed application judges to balance four factors: the length of the delay; defence waiver; the reasons for the delay, including inherent time requirements, Crown delay, defence delay, institutional delay and others; and any prejudice to the accused person’s liberty, security and fair trial rights.

[10] The decision in Jordan reflects a robust debate between judges of the Supreme Court about whether wholesale changes were needed to the s. 11(b) framework of analysis. The prevailing view was that they were. The majority expressed the view that the application of the Morin framework had proven, in practice, to be unpredictable. It was overly flexible and, in the result, led at times to the countenancing of inordinate delays. The analysis of prejudice was highly problematic and its treatment in the jurisprudence confusing, hard to apply and highly subjective. And it often led to complex, time-consuming and inefficient day-by-day accountings of the proceedings from charge to trial. In short, it was “too unpredictable, too confusing, and too complex.” (Jordan, para. 38).

[11] The core feature of the new framework created in Jordan is the introduction of presumptive ceilings: 18 months (from arrest) for cases going to trial in provincial courts and 30 months for cases going to trial in superior courts. These ceilings are rebuttable in limited circumstances, both above and below the presumptive ceilings, depending on case-specific factors. The presumptive ceilings are not intended to be aspirational. They are fixed ceilings, beyond which non-rebuttable prejudice to the accused is to be inferred.

[12] The ceilings are meant to account for factors that can reasonably contribute to the time it takes to prosecute a case, including the inherent time requirements of the case. They were described as accounting for “the significant role that process now plays in our criminal justice system.” (Jordan, para. 53).

[13] That said, the calculation of the ceilings is subject to extensions for defence delay and to account for exceptional circumstances. In other words, the ceilings are 18 and 30 months plus any amount of time attributed to defence delay or to exceptional circumstances.

[14] “Defence delay” is divided into two components: delay unequivocally waived by the defence; and delay that is caused solely by the conduct of the defence. (Jordan, paras. 61-63).

[15] Extending the ceiling for defence-caused delay is intended to prevent an accused person from benefitting from his or her own action or inaction that results in delay. It does not include the time reasonably required to legitimately respond to the charges. It does include deliberate tactics aimed at causing delay, including frivolous applications. See R. v. Cody, 2017 SCC 31 at paras. 29-33.

[16] Extending the ceiling to account for exceptional circumstances recognizes that even though the established ceilings account for a broad range of factors that can reasonably contribute to the time it takes to prosecute a case, there may be unforeseen or unavoidable circumstances, beyond the Crown’s control, that contribute to delay.

[17] The Court of Appeal recently provided a helpful, step-by-step procedure for applying the Jordan framework. In R. v. Zahor, 2022 ONCA 449 at paras. 60-78, Coroza, J.A., instructed that the court, on an 11(b) application, “must identify and characterize the periods of delay occasioned throughout the trial” through the following steps:

Step 1: Calculate the total delay. This is the period extending from the laying of the charge to the actual or anticipated end of the trial.

Step 2: Calculate the net delay. This figure is a function of total delay less defence delay. Again, defence delay includes periods clearly and unequivocally waived by the defence as well as delay that is caused solely or directly by conduct of the defence.

Step 3: Compare the net delay to the applicable presumptive ceiling. If the delay exceeds the ceiling, it is presumptively unreasonable. The Crown bears the burden, in such circumstances, of rebutting the presumption by demonstrating exceptional circumstances.

Step 4: Consider exceptional circumstances. The focus is not on whether the circumstances are rare or uncommon, but rather whether they fell beyond the control of the Crown and could not be reasonably remedied by the Crown. Exceptional circumstances may reflect discrete events or they may involve cases of particular complexity. The Crown must demonstrate that it took reasonable steps, even if unsuccessful, to “circumvent and adapt to problems before the delay exceeded the presumptive ceiling.” (Zahor, para. 68. See also Jordan, para. 70).

DISCUSSION

[18] I intend to follow the steps described in Zahor in conducting my analysis of the live issues. I will set out the parties’ positions with respect to each issue as they arise.

Step One: The Total Delay

[19] Step one is the easiest part of the analysis. In fact, I have already set out the total delay. It spans from November 26, 2018 to February 10, 2023. The span between the time charges were first laid and the anticipated completion of the trial is therefore some 50.5 months.

[20] The charges against Mr. Khan were actually laid incrementally. He was initially charged with two counts of simple assault on November 26, 2018. On January 18, 2019, he was charged with three counts of sexual assault. On July 10, 2019 he was charged with an additional six counts of sexual assault. All charges relate to a single complainant.

[21] Crown and defence counsel are agreed that the start date for the Jordan analysis is November 26, 2018 with respect to all charges. My analysis is conducted on that basis.

Step Two: The Net Delay

[22] One of the criticisms of the Morin framework of analysis for 11(b) applications was its tendency to force the court to engage in a painstaking and time-consuming accounting of virtually every day of the litigation from charge to trial. As the majority described it, “[t]he minute accounting it requires might fairly be considered the bane of every trial judge’s existence”. (Jordan, para. 37).

[23] To the extent that Jordan aspired to do away with “micro-counting”, this case demonstrates that it has not been entirely successful.

[24] Attached as Appendix “A” to this ruling is a chart detailing the chronology of this case through its 34 appearances to date. The characterization of a number of the events set out in the chronology is in dispute.

Express Waiver

[25] One aspect of the chronology that the parties do agree on is that there was just one period of express waiver of delay. It covers the period August 29, 2019 to October 10, 2019, some 42 days. I will briefly explain the circumstances surrounding the waiver.

[26] One of the problems faced by the litigants in this case, and others arising in the same time period, was the impact of Bill C-75.

[27] Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, was introduced by the Federal Government on March 29, 2018. It received Royal Assent on June 21, 2019.

[28] When enacted, Bill C-75 made a number of significant amendments to criminal procedure. Most notable, for the purposes of this case, is that it restricted the availability of preliminary inquiries to offences liable to a maximum sentence of 14 years or more of imprisonment.

[29] Prior to the introduction of the Bill, preliminary hearings were available, at the request of the accused or the Crown, where the accused was charged with an indictable offence and elected to be tried in the Superior Court of Justice (the “SCJ”) by a judge or a judge and jury. After the Bill became law, only accused persons charged with indictable offences punishable by 14 or more years of imprisonment have the option of requesting a preliminary hearing.

[30] The amendments regarding the availability of preliminary hearings came into force on September 19, 2019. They directly impacted Mr. Khan because none of the offences he was charged with was punishable by 14 years or more in prison. At the time he was charged, Mr. Khan’s charges were eligible for a preliminary hearing. After September 19, 2019 they were not.

[31] A very live issue in the summer of 2019 was whether the amendments regarding the availability of preliminary hearings would have retroactive effect. The Bill did not make that clear, nor include any sort of transitional provision.

[32] I will address the way in which the uncertainty surrounding the impact of Bill C-75 resulted in delay in this case in a moment. For the time being, I note that as the parties debated, in the summer of 2019, whether Mr. Khan’s charges were eligible for a preliminary hearing, they learned that a number of applications regarding the same issue were to be heard on September 26, 2019. On August 29, 2019, the litigants agreed to an adjournment to October 10, 2019 with an express 11(b) waiver to await the outcome of the applications scheduled to be heard on September 26, 2019. Accordingly, they agree that there are 42 days subject to an express 11(b) waiver.

Defence Delay

[33] In an attempt to come at this in an organized way, I intend to address the matter of defence delay in four categories. Specifically, delays arguably associated with (1) the retention of counsel; (2) the making of an election under s. 536 of the Criminal Code; (3) the preliminary hearing; and (4) the setting of a trial date in this court.

Delays Retaining Counsel

[34] Mr. Khan made a first appearance in the Ontario Court of Justice (the “OCJ”) on December 18, 2018. He had been charged over three weeks earlier. He did not have counsel. He was encouraged to get counsel and he was adjourned over to January 8, 2019. This is, in my view, a relatively normal part of the intake process and I would not classify it as defence delay.

[35] On January 8, 2019, however, Mr. Khan remained without counsel. He sought time to complete a Partner Assault Response (“PARS”) program with a view to resolving his charges in May 2019, when the program was expected to be completed. The presiding justice, Henschel, J., with the assistance of duty counsel, explained to Mr. Khan that he had the option to fix an early trial date should he wish to do so. It was explained to him that opting to adjourn to compete the PARS program would result in delay. He confirmed that he understood and wished to adjourn so he could pursue that program.

[36] Mr. Khan was adjourned to March 15, 2019 to be spoken to as to the progress of the PARS program. He was back in court prior to then, however, on March 5, 2019 as a result of the additional charges laid on January 18, 2019. In my view, the 56-day delay between January 8, 2019 and March 5, 2019 was occasioned by Mr. Khan’s decision to enrol in the PARS program. He made that decision knowing his case would be delayed and at a time when he was being offered an early trial date. Those 56 days are properly characterized as defence delay.

[37] When Mr. Khan was back before the court on March 5, 2019, he was still without retained counsel, though he did have counsel assisting him. He sought an adjournment to March 27, 2019 to pursue an application for Legal Aid. Again, in light of the new and more serious charges before the court, this was not an unreasonable nor extraordinary request. Though Mr. Khan could arguably have taken steps to retain counsel more promptly, I would characterize this additional time to retain and instruct counsel as part of the inherent time requirements of the case.

[38] At March 27, 2019, Mr. Khan still had not retained counsel and the matter was adjourned to April 24, 2019. Mr. Khan was still waiting on a Legal Aid certificate. While I do not blame him for any delays in the Legal Aid office, I think it has to be said that this is now delay attributable to him. The sole reason for the one month adjournment was because he had yet to retain counsel, now four months after the original charges were laid and two months after the additional charges were laid. These 28 days fall at the feet of the defence.

[39] By April 24, 2019 Mr. Khan had retained counsel, Mr. Paiva. An adjournment was requested to May 22, 2019 to allow Mr. Paiva time to review disclosure. In my view, that period of time was part of the inherent time requirements of the case.

[40] On May 22, 2019, however, Mr. Paiva asked for a further adjournment because he had not yet finished reviewing the disclosure provided by the Crown. At the request of the defence, the case was adjourned to June 12, 2019. The Crown’s position is that this is a delay directly attributable to the defence.

[41] It is clear that the period between May 22, 2019 and June 12, 2019 reflects a delay requested by the defence. Having said that, I do not know the extent of the disclosure involved in this case and am unable to say that the time taken by Mr. Paiva to review it was unreasonable. In both Jordan and Cody, the Supreme Court made it clear that the defence must be permitted time to prepare and present its case. “Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay”: Jordan, at para. 65. I am not persuaded that the time between May 22, 2019 and June 12, 2019 was not time legitimately required to respond to the charges before the court. I do not include it as defence delay.

[42] In the result, I find that there were 84 days of defence delay associated with adjournments relating to Mr. Khan’s pursuit of the PARS program and his slow retention of counsel.

Delays in Making an Election

[43] On June 12, 2019, Mr. Paiva appeared for Mr. Khan and scheduled a judicial pre-trial for August 15, 2019. Discussions began on August 15 regarding Mr. Khan’s eligibility for a preliminary hearing, in light of Bill C-75. The pre-trial could not be completed and was adjourned to August 29, 2019 to continue.

[44] On August 29, 2019, a fulsome discussion appears to have taken place regarding the preliminary hearing issue. The Crown’s position was that Bill C-75 had retroactive effect and, in the result, the charges against Mr. Khan were not eligible for a preliminary inquiry. Mr. Khan’s position was that he wished to have a preliminary hearing. He was not prepared to make his election under s. 536 until the issue was resolved. As I noted above, the parties agreed to an adjournment to October 10, 2019 with an express 11(b) waiver to await the outcome of a number of applications being argued on the retroactivity issue.

[45] On September 27, 2019, Thomas, R.S.J., released a decision in R. v. R.S., 2019 ONSC 5497 in which he held that the elimination, by Bill C-75, of preliminary hearings for certain offences, was procedural in nature and, accordingly, was retroactive in effect. In the face of this decision, the parties attended at the trial co-ordinators’ office, on October 10, 2019, and obtained a date for a trial in the Ontario Court of Justice, together with dates for anticipated pre-trial motions. The case was adjourned to October 24, 2019 to confirm the trial dates on the record and in Mr. Khan’s presence.

[46] The Crown took the position that the delay between October 10 and 24, 2019 was defence delay, or arguably waived. In my view, having carefully reviewed the transcript of October 10, 2019, there was no waiver. Moreover, there was no meaningful delay because the trial date was picked on October 10th. The two-week adjournment did not make any difference to the trial date.

[47] The trial date was fixed for September 14, 2020. Pre-trial motions were scheduled for June 29-30, 2020. Assuming the trial would be completed in a week, it was expected to be over by September 18, 2020. Recall that the charges were laid on November 26, 2018. The fixed trial date would have, had the matter proceeded in the OCJ, been completed roughly 22 months from the date the charges were first laid (661 days to be precise). By may calculation, there had been 42 days subject to an express 11(b) waiver and 84 days I attribute to defence delay, bringing the net delay down to 535 days, just a few days shy of 18 months. In other words, just barely under the Jordan ceiling for cases proceeding to trial in the OCJ.

[48] Interestingly, Mr. Khan had still not formally made an election under s. 536 of the Code as of October 24, 2019, even though a trial date in the OCJ had been set.

[49] Prior to the return date of October 24, 2019, counsel learned that the Court of Appeal would be hearing a defence appeal in the R. v. R.S. case on October 28, 2019. Mr. Khan again put off making his election, pending a ruling on Bill C-75 by the Court of Appeal. It was agreed that if the appellate court found that Bill C-75 did not have retroactive effect, the dates scheduled for pre-trial motions would be converted to a preliminary hearing and the trial date would be vacated. The matter was adjourned to November 28, 2019 to be spoken to.

[50] On November 18, 2019, the Court of Appeal ruled that the elimination of preliminary hearings for certain cases was a substantive and not merely a procedural change. It did not have retroactive effect. For those cases in the system where an election had been made – prior to September 19, 2019 – to have a preliminary hearing, the accused would remain eligible to have a preliminary inquiry. Counsel proceeded on the basis that Mr. Khan had evinced a clear intention to elect to have a preliminary hearing and there was no dispute that he was entitled to one. In the result, the dates previously scheduled for pre-trial motions were converted to a preliminary hearing.

[51] Looking back, there was obviously a great deal of uncertainty in the spring and summer of 2019 regarding Mr. Khan’s eligibility for a preliminary hearing. And there were significant delays in his making his election under s. 536 of the Criminal Code. That said, apart from the 42 days expressly waived, I find no defence delay in the period between June 12, 2019 and June 29, 2020. The parties were able to mitigate any potential delays associated with the confusion about Bill C-75 by (1) agreeing that Mr. Khan did not need to make a formal election until the Bill C-75 issue was resolved, and (2) fixing June 29, 2020 as a contingent date for a preliminary hearing.

[52] Before moving on, I note that Mr. Khan retained new counsel, Mr. Palleschi, in January 2020. He eventually made a formal election to have a trial in this court, with a preliminary hearing, on March 12, 2020. The presumptive Jordan ceiling moved to 30 months.

The Adjournment of the Preliminary Hearing

[53] The preliminary hearing could not proceed in June 2020 because of the impact of the COVID-19 pandemic. It was rescheduled to April 29, 2021 under circumstances I will address in my assessment of discrete exceptional events.

[54] When April 29, 2021 arrived, the preliminary hearing could not proceed, again due to COVID-related restrictions on the court’s operations. Dates were apparently available in February 2022 but I do not know what they were. In any event Mr. Palleschi was not available in February 2022. An alternate date was offered of March 7, 2022, but again, Mr. Palleschi was not available. The date of March 21, 2022 was settled upon. The period between March 7, 2022 and March 21, 2022 reflects 14 days of delay attributable to the defence.

[55] On March 21, 2022, Mr. Palleschi was ill and could not proceed with the preliminary hearing as scheduled. After two further appearances, it was scheduled for May 30, 2022, which reflects 70 days of defence delay.

[56] The preliminary hearing proceeded as scheduled on May 30, 2022 and Mr. Khan was committed to trial in this court. He was adjourned to July 27, 2022 for a judicial pre-trial in the SCJ.

[57] In total then, I find that there were 84 days of defence delay associated with the scheduling of the preliminary hearing.

Delays in Setting the Trial Date

[58] On July 27, 2022 a jury trial date was scheduled in the SCJ for April 6, 2023. Subsequently, however, Mr. Khan indicated a desire to re-elect to have his trial before a judge alone. Judge-alone trial dates were offered for October 3 and November 21, 2022 as well as January 23, 2023. Defence counsel was not available for any of those dates. Instead, a trial date was fixed for February 6, 2023, with an expected completion date of February 10, 2023.

[59] The Crown’s position is that the entire period from October 3, 2022 to February 6, 2023 is defence delay. Defence counsel’s position is that he cannot be expected to have a free calendar and be available on any date offered by the court. He cited R. v. Godin, 2009 ONSC 7209 as support for the proposition that defence counsel do not have to hold themselves in a “perpetual state of availability”.

[60] On this issue, I agree with the position of the Crown.

[61] I think it important to recognize that Godin was a case where the Crown was largely responsible for a preliminary hearing not proceeding in a timely way and the need to obtain additional dates to complete it. There was evidence that the defence in that case had been making efforts to have the case expedited. Cromwell J. held that, in those circumstances, it would not be reasonable “[t]o hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted.” (Godin, para. 23).

[62] Subsequent to Godin, the Supreme Court held, in both Jordan and Cody, as above, that defence delay includes the situation where the court and the Crown are ready to proceed but the defence is not. (Jordan, para. 64 and Cody, para. 30). Facially, Jordan and Cody therefore appear to overtake Godin. They appear to suggest that any date offered where the Crown and court are available but the defence is not suspends the running of the delay clock until the next date when the defence is available.

[63] I agree, however, with the observations of Nakatsuru, J. in R. v. Simmons, 2020 ONSC 7209 to the effect that Jordan and Cody do not entirely overtake the dicta in Godin. Instead, each case must be considered on its own merits. In some circumstances, as in Godin, it will be unfair to stop the delay clock at the first date offered to the defence. But in most cases, “the offering of a single date where the Crown and the court are available but defence counsel is not, will constitute the beginning of defence-caused delay.” (Simmons, para. 29).

[64] In the case at bar, the delay clock sat above 44 months at the time the judge-alone trial date was fixed. At the same time, Mr. Khan was seeking to schedule an 11(b) motion. The court offered a trial date as early as October 3, 2022. The Crown was ready to proceed. Mr. Khan could not proceed on the October date because his counsel was not available. That is not in any way a criticism of Mr. Khan or his counsel. It is a straightforward fact. In my view, in the circumstances prevailing here, the delay between October 3, 2022 and February 6, 2023 falls at the feet of the defence. There is nothing unfair about that.

[65] I note that defence counsel argued that there would not have been sufficient time between August 15, 2022 and October 3, 2022 to complete the pretrial motions, even if he had been available in October. That is entirely speculative and a post-facto justification for not accepting the October 3, 2022 date. On August 15, 2022, defence counsel indicated, on the record, that he was not available in October 2022. There was no discussion about possibly scheduling pre-trial motion dates prior to that time.

[66] In the result, I find that the period between October 3, 2022 and February 6, 2023 reflects 126 days of defence delay.

Summary on Net Delay

[67] I find that the time between the original charges (November 26, 2018) and the anticipated completion of the trial (February 10, 2023) is 50.5 months.

[68] I find that 42 days of delay were explicitly waived by the defence.

[69] And I find that 294 days are attributable to defence delay, being:

(a) 84 days associated with the pursuit of the PARS program and the subsequent retention of counsel;

(b) 84 days associated with the scheduling of the preliminary hearing; and,

(c) 126 days associated with the scheduling of the trial.

[70] The total defence delay, including the period waived, is roughly 11 months. The net delay is, accordingly, 39.5 months.

Step Three: Net Delay and the Applicable Ceiling

[71] At 39.5 months, the net delay clearly exceeds the applicable Jordan ceiling of 30 months for cases tried in the SCJ. It is presumptively unreasonable. The onus is squarely on the Crown, in the circumstances, to rebut the presumption by establishing the presence of exceptional circumstances.

[72] The defence application turns, in the result, on the court’s assessment of the delays reasonably attributable to the COVID-19 pandemic.

Step Four: Exceptional Circumstances

[73] The “deductibility” of COVID-related delays is the most hotly contested issue on this application and my findings are dispositive of the application. I will accordingly take some time to set out the parties’ positions, describe the prevailing (and generally well-known) circumstances and canvas the relevant jurisprudence before embarking on an analysis of the live issues.

The Crown’s Position

[74] Crown counsel points to two lengthy periods that she says meet the “exceptional circumstances” standard. In other words, events that were unforeseen or unavoidable and beyond the Crown’s control. She says these circumstances largely inform the delays experienced in getting this case to trial. Both periods involve COVID-related postponements of the preliminary hearing. The first ran from June 29, 2020 to April 29, 2021; the second from April 29, 2021 to March 21, 2022. These delays were, the Crown contends, out of its control and should be deducted from the total delay.

[75] In the Crown’s submission, when delays relating to these exceptional circumstances are deducted, the result is a “net net” delay of about 18 months, well below the applicable Jordan ceiling.

Mr. Khan’s Position

[76] Mr. Khan accepts that there were delays in the prosecution of his case caused by the COVID-19 pandemic. He further accepts that some portion of those delays amount to exceptional circumstances which do not count against the Jordan ceiling.

[77] Mr. Khan argues, however, that the Crown cannot simply point to the entire period between June 29, 2020 and March 21, 2022 and subtract it as COVID-related delay. The Crown must, he says, first establish that the pandemic was the cause of all of that delay. See R. v. Kaur, 2021 ONSC 7519 at para. 40. Moreover, even where the pandemic was the cause of a period of delay, the court and the Crown remained obliged to take reasonable steps to mitigate the delay. See Jordan, at para. 75 and R. v. Coates, an unreported decision dated August 3, 2022 of Bird J. in SCJ file CR-19-718. The Crown, he says, has failed to adduce any evidence of any steps it took to mitigate the impact of the pandemic on the prosecution of his case and, in the result, is unable to rebut the presumption of unreasonable delay.

[78] Since the COVID-19 pandemic plays a central role in the time periods in issue, I will take some time to detail the circumstances prevailing in the OCJ in the Central East Region subsequent to March 16, 2020.

Circumstances Post-March 16, 2020

[79] On March 11, 2020, the World Health Organization declared the COVID-19 outbreak to be a global pandemic. Five days later, and in response to the public health emergency, the OCJ adjourned all non-urgent criminal matters for out-of-custody accused persons to a fixed speak-to date roughly ten weeks from the original appearance date.

[80] In Mr. Khan’s case, his matter was presumptively adjourned to September 14, 2020 to be spoken to.

[81] In the meantime, on June 17, 2020, the OCJ published a Notice to the Profession indicating that trial and preliminary hearings would begin to resume in a limited capacity as of July 6, 2020. The Notice advised that instructions for re-scheduling preliminary hearings and trials that were adjourned due to COVID-19 would be forthcoming in the near future.

[82] On July 2, 2020, the OCJ published a further Notice to the Profession. This Notice included instructions on setting preliminary hearing dates for cases adjourned due to COVID-19. A priority system was established, in light of the need to reschedule a large number of cases adjourned due to the pandemic. New dates would be given in the following priority: (1) in-custody continuations of hearings commenced but not finished due to the pandemic; (2) in-custody hearings adjourned due to the pandemic; (3) new in-custody hearings; (4) out-of-custody continuations of hearings commenced but not finished due to the pandemic; (5) out-of-custody hearings adjourned due to the pandemic; and (6) new out-of-custody hearings.

[83] Mr. Khan’s case fell into the fifth category, as an out-of-custody hearing adjourned due to the pandemic. The timeline for rescheduling category five priority cases was yet to be determined as of July 2, 2020. That said, counsel were instructed in the July 2, 2020 Notice to complete a Preliminary Inquiry Scheduling Form and submit it to the local trial co-ordinators’ office.

[84] On August 12, 2020, the OCJ published a further Notice to the Profession indicating that rescheduling of out-of-custody cases adjourned due to the pandemic (category five priority cases) would begin as of Monday, August 17, 2020. A specific timetable was provided in the Notice. It indicated that for cases adjourned between June 8 and July 3, 2020 (which included Mr. Khan’s case), rescheduling would commence no later than September 14, 2020. Again, counsel were directed to file a rescheduling form with the local trial co-ordinator.

[85] Mr. Khan’s counsel submitted his rescheduling form to the trial co-ordinators’ office on September 7, 2020.

[86] On September 14, 2020, Mr. Khan’s matter was back before the court. No one appeared for Mr. Khan. No mention was made of the rescheduling form submitted to the trial co-ordinators’ office. The case was adjourned to October 19, 2020 on a bench warrant with discretion.

[87] On October 18, 2020, Mr. Khan’s counsel requested an update from the local trial co-ordinators’ office regarding the rescheduling of the preliminary hearing. It appears he did not receive a response.

[88] On October 19, 2020, Mr. Khan’s matter was back before the court. Again, no one appeared for Mr. Khan. The attending Crown asked that the matter go over to November 2, 2020 and indicated that someone would follow up with Mr. Khan’s counsel. The bench warrant in discretion was extended.

[89] The Crown’s office inadvertently followed up with Mr. Khan’s former counsel, Mr. Paiva, rather than Mr. Palleschi. Nevertheless, Mr. Paiva did forward the Crown’s contact information to Mr. Palleschi. I find that Mr. Palleschi was aware of the November 2, 2020 return date.

[90] Unfortunately, Mr. Palleschi’s father passed away in late October 2020. He was unavailable to attend on November 2, 2020 because it conflicted with a scheduled viewing. When the matter proceeded, it was confirmed that Mr. Palleschi had filed a rescheduling request form. Nothing could otherwise be accomplished and the matter was adjourned to December 7, 2020 for a judicial pre-trial and to schedule new dates.

[91] On December 7, 2020, Mr. Palleschi appeared by designation. He advised that he had yet to hear back from the trial co-ordinators’ office about potential new dates for the rescheduled preliminary hearing. In the result, the case was adjourned for one month, to January 7, 2020, to set a date.

[92] In the meantime, however, new dates were offered, presumedly by the trial co-ordinator, and the matter was brought forward to be spoken to on December 16, 2020. The new dates scheduled for the preliminary hearing were confirmed as April 29-30, 2021.

[93] The spring of 2021 saw spiking numbers of COVID-19 infections in the community and an increased burden on the health care system due to spiking hospitalizations. As a result, and in an effort to reduce the number of people attending at courthouses, the OCJ suspended all criminal trials and preliminary hearings involving out-of-custody accused persons scheduled between April 26, 2021 and May 21, 2021 (which again included Mr. Khan’s case). The court published a Notice to the Profession dated April 21, 2021 regarding the adjournments. It indicated that in the Central East Region cases in the designated period would be put over to a presumptive adjournment date in June, 2021.

[94] In Mr. Khan’s case, his counsel appeared on April 29, 2021 to speak to the matter and was able to set new preliminary hearing dates at that time. Dates were then being set in February 2022. Mr. Palleschi was not available in February 2022, however, and as I noted above, the preliminary hearing was ultimately scheduled to proceed on March 21, 2022. There is no indication in the transcripts that anyone expressed any concern about delay at that time.

The Jurisprudence

[95] There have already been a significant number of s. 11(b) applications involving COVID-19 delays and I suspect there will be many more to come.

[96] One of the earliest cases to address delay in the COVID era was R. v. Simmons, as above. There, Nakatsuru J. held that no reasonable person could contend that the COVID-19 public health crisis was not a discrete, exceptional circumstance within the meaning of Jordan. I agree. So does counsel for Mr. Khan.

[97] What is tricky in each case, however, is determining just what delays have actually been caused by the pandemic and what delays during the pandemic could reasonably have been mitigated by the court or the Crown.

[98] In Simmons, the accused’s jury trial was set to commence in the SCJ in Toronto on March 16, 2020, the very day that court operations first shut down. On June 2, 2020 a new trial date was scheduled for January 11, 2021. The Crown asserted that the entire period between March 16, 2020 and January 11, 2021 was deductible in the delay accounting as an exceptional event. Defence counsel demurred and argued that the suspension on jury trials ended in Toronto on September 14, 2020. The delay clock, the defendant said, should have restarted at September 14, 2020.

[99] Nakatsuru J. concluded that the entire period of delay, between the original trial date and the new one, should be deducted as an exceptional circumstance. He grounded his conclusion in the following five factors:

(a) Most courts called upon to assess COVID-related delays had deducted the entire time from the start of the impact of the pandemic to the date of rescheduled trials. He cited a number of decisions to support that finding (para. 69);

(b) COVID-19 had a system-wide impact. It created a backlog of cases that made re-scheduling complex and difficult. The delays created by COVID-19 were not limited to those periods of time when court operations were suspended. They included time required to reschedule matters after court operations resumed (para. 70);

(c) It is unrealistic to think that as soon as the courts re-opened to jury trials, any trials that had to be adjourned due to COVID-19 could be rescheduled to be heard immediately;

(d) The pandemic was, at the time, continuing in force. In other words, the exceptional event was continuing; and,

(e) There was evidence that the Crown was proactive in attempting to mitigate the delay. The Crown gave the Simmons case priority. An earlier date of September 28, 2020 was offered, but defence counsel was not available.

[100] Cases subsequent to Simmons have noted that it must be read in the context of its specific facts. No one doubts that COVID-19 was an exceptional circumstance. Cases subsequent to Simmons have frequently observed, however, that it is necessary that the Crown establish that (1) the pandemic caused a delay, and (2) that the delay could not reasonably have been mitigated.

[101] Some cases appear to interpret Simmons as standing for the proposition that the entire span of any COVID-related delays should automatically be characterized as discrete, exceptional circumstances. I do not read it that way. It appears to me to say nothing more than that COVID-19 is properly regarded as an exceptional event and that accused persons must accept that the exceptional event spanned not only the time the court’s operations were suspended or limited, but also the time it reasonably took to reschedule the many cases impacted by the exceptional, system-wide event. In my view, no one could seriously argue otherwise. Beyond that, there was case-specific evidence that the Crown had taken reasonable steps to mitigate COVID-related delay.

[102] Looking at cases subsequent to Simmons, a general theme emerges. That theme, which is not inconsistent with Simmons, is that while COVID-19 is undoubtedly an exceptional event, there is no “automatic” or formulaic deduction. Each case must be examined in context to determine whether the Crown has met the requirements established by Jordan.

[103] In R. v. Schardt, 2021 ONSC 3143, at para. 68, Nieckarz J. held that “the Crown must prove that but for the pandemic, earlier dates would have been obtained...”

[104] In R. v. Bui, 2021 ONCJ 60, at para. 24, Block J. observed that “the pandemic is not a free pass from s. 11(b) impact. The courts have consistently required that the Crown mitigate the impact of the pandemic wherever possible.”

[105] In R. v. Ali, 2021 ONSC 1230, Somji J. observed that most of the cases addressing delay from COVID-19 have found the entire period of delay between the original COVID-related adjournment and the rescheduled trial date to be COVID-related delay. She went on to note, however, that judges hearing s. 11(b) applications still have a responsibility to assess the particular circumstances of the case, including whether there were causes for the delay apart from COVID-19 and whether the Crown and court took reasonable steps to mitigate delays.

[106] Somji J. also commented, in obiter dicta, that the “suddenness of the pandemic and the complexity of the criminal justice system cannot be relied upon indefinitely to justify delay over the presumptive ceiling as an exceptional circumstance.” In her opinion, the court and the Crown would eventually need to demonstrate that they have adopted reasonable measures, including harnessing new technologies, to mitigate delays. (Ali, para. 64).

[107] In R. v. Hazizaj, 2022 ONCJ 386, Horkins J. reiterated the obligation imposed on the Crown and the court by Jordan, to demonstrate that they took reasonable steps to mitigate delays caused by discrete exceptional events. He said, at para. 34:

The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that reasonable efforts were made to remedy the problems impairing the progress of the case through the justice system and pushing it into the constitutionally intolerable zone of unreasonable delay.

[108] In R. v. Coates, as above, Bird J. underscored the importance of the Crown providing an evidentiary basis to establish that it took reasonable steps to mitigate the impact of an exceptional circumstance. She stated, at para. 30, “the Crown is not entitled to throw up its hands and accept whatever date is offered by the trial co-ordinator once the Jordan ceiling is exceeded.”

[109] In summary, and at the risk of being repetitive, I understand the current state of the jurisprudence to be the following:

(a) COVID-19 is undeniably a discrete, exceptional event within the meaning of Jordan;

(b) Crown counsel must establish, however, that delays attributed to COVID-19 were actually caused by the pandemic and not some other factor. In other words, that the delay would not have been incurred but for the pandemic; and,

(c) Even where the Crown establishes that a delay was directly attributable to the pandemic, it must still establish that the delay could not reasonably have been mitigated by the court or the Crown. In making this assessment, the court will take into account advancements in the technological abilities of the court to run hearings remotely or in a hybrid manner as the pandemic went on.

Analysis

[110] I begin my analysis with some general comments about the application of the Jordan framework to cases impacted by the COVID-19 pandemic.

[111] It is generally accepted that the COVID-19 pandemic impacted the operations of the court in ways that were at once arresting, unprecedented and seemingly unrelenting.

[112] My review of the recent s. 11(b) caselaw reflects that courts have at times struggled to apply the Jordan framework to delays incurred during the prolonged public health crisis. That courts might struggle to do so is not surprising. The Jordan framework, while adaptable to a wide range of circumstances, was not designed with prolonged, system-wide shutdowns in mind.

[113] When the majority in Jordan spoke of discrete, exceptional events, they provided examples that included medical or family emergencies, as well as unforeseen or unavoidable developments in a case such as a recanting witness. Unsurprisingly, no mention was made of a prolonged system-wide shutdown arising as a result of a deadly pandemic raging across the globe; one that required the court to fundamentally alter the way it conducts its business almost overnight.

[114] The majority did stress, of course, that the categories of discrete events were not closed. That the COVID-19 pandemic is an “exceptional circumstance” is a no brainer. But to refer to it as a “discrete event” as that concept was laid out in Jordan fails to do it justice. It is of a fundamentally different quality than those exceptional circumstances referred to in Jordan. It has been a prolonged, globally shared experience of immense reach and impact.

[115] I am not suggesting that the Jordan framework is not capable of accounting for delays caused by the COVID-19 pandemic. It is. But in applying it – and in particular, in considering the requirement of “reasonable mitigation” – three factors must be kept in mind:

(a) Because delays during the pandemic were generally related to system-wide shutdowns, they required a system-wide response. In other words, there was little that the Crown could reasonably do to attenuate much of the delays. The Crown, like accused persons, were at the mercy of the court in terms of the rescheduling protocol for cases impacted by suspensions or limitations of service;

(b) The court was not faced with managing one file impacted by a discrete, extraordinary event. It was faced with hundreds of files simultaneously thrown off the rails due to a prolonged system-wide event. That means hundreds of files simultaneously crossed Jordan thresholds, not because of complacency or insufficient resources, but because of an unprecedented public health crisis. Those files had to be triaged, prioritized and rescheduled in an environment that was extremely challenging to say the least; and,

(c) As Nakatsuru J. observed in Simmons, the simultaneous adjournment, en masse, of hundreds of cases made rescheduling a breathtakingly complex and difficult task. The task would have been difficult enough had the virus run through the community and disappeared. But as everyone knows, that is not what happened. Instead, it mutated and returned in wave after wave resulting in repeated reductions in court operations.

[116] The “reasonableness” of the response of the Crown and the court in terms of attenuating COVID-related delays must be considered in the light of the complex and challenging circumstances that existed on the ground. This was not business as usual and the analysis should respect that. Any single case can easily be plucked out of the sea of cases impacted by COVID-19 and questions asked about what more the Crown could have done to find earlier dates after the Jordan ceiling was breached. For each of the hundreds of cases delayed by COVID-19, the Crown could be asked, “why didn’t you go to the trial co-ordinators’ office and push for sooner dates?” Or, “why didn’t you pursue more active case management?” Or, “why didn’t you approach the Regional Senior Justice with a view to redeploying resources to focus on this case?”

[117] The reality is, however, that the Crown and the court were not dealing with a single case. They were simultaneously dealing with hundreds of cases in Jordan trouble. It was simply not possible to give them all “earlier dates” or to redeploy resources to focus on each individual case. For every case given a particular date, another case had to wait. In my judgment, where cases have clearly been delayed due to the COVID-19 pandemic, the Jordan analysis should generally focus more on the reasonableness of the systemic response than what the Crown may have done or not done in relation to any single case. The actions or inactions of the Crown may have particular relevance in a specific case. But in my view, most cases will fall to be determined on the reasonableness of the systemic response to the crisis.

[118] Mr. Khan’s counsel put particular emphasis in argument on the comment of Bird J. in Coates to the effect that the Crown cannot simply throw up its hands and take the first date offered by the trial co-ordinator when a case is in Jordan trouble. I think this comment must be considered in context. In Coates, defence counsel had approached the local trial co-ordinator and obtained an option for an earlier date than that initially offered. The Crown in effect impeded, rather than facilitated, proceeding on the earlier date. It was a case where there was case-specific evidence of the Crown failing to take clearly available steps to mitigate further delay.

[119] In most cases of COVID-related delay, it will not be unreasonable for counsel, including the Crown, to take the earliest dates offered by the trial co-ordinator, in light of the fact that the trial co-ordinators have been doing their best to promptly reschedule all of the hundreds of cases impacted by COVID-19, in line with protocols established by the court. No one can reasonably expect that in each of the hundreds of cases delayed by the COVID-19 pandemic, Crown counsel should push back on the “earliest available dates” provided by the trial co-ordinator and hound them to do better. The Crown is not, as Goodman J. put it at para. 70 of his recent ruling in R. v. Kirkopoulos, “obligated to prioritize one individual case over another where thousands of matters were adjourned and await trial.”

[120] I turn now to the specific circumstances of this case.

[121] The first question to be asked in the Jordan analysis is whether COVID-19 caused the delays in issue. I answer that question with a resounding yes, to both periods in issue here.

[122] It must be said that Mr. Khan has been strikingly unlucky in terms of timing. The original preliminary hearing was scheduled to take place in late June 2020. At that time, the court was still largely shut down. The use of the Zoom platform to conduct hearings was in its infancy. The courtroom technology to successfully and efficiently run Zoom hearings was not yet in place. Only the most pressing cases were being dealt with. Frequently, they were being conducted over the telephone.

[123] Mr. Khan’s preliminary hearing could not proceed when first scheduled entirely because of the COVID-19 pandemic. It ended up adjourned to the spring of 2021. At the time it was rescheduled, there was a good deal of optimism that the pandemic would have abated by that time. Instead, and despite the arrival of a vaccine, cases in the community were spiking. Courts were once again all but closed. Many, many cases were, by necessity, adjourned. One of those cases was Mr. Khan’s preliminary hearing. Again, the adjournment was entirely related to the COVID-19 pandemic.

[124] Said another way, but for the pandemic, Mr. Khan’s preliminary hearing would have proceeded as scheduled in June 2020. And but for the pandemic, it would have proceeded when rescheduled in April 2021.

[125] This application is not, however, really about whether COVID-19 was the reason why the preliminary hearing was aborted on two occasions. It is about the response: whether the Crown and the court did enough to mitigate the delay to meet their constitutional obligations to Mr. Khan. And it is about whether the Crown has provided an evidentiary record sufficient to answer the application.

[126] I will take a moment to comment on the evidentiary record. The Crown, for reasons best known to it, did not file any evidence in response to Mr. Khan’s application, save to provide the court, as Mr. Khan’s counsel did, with copies of the various Notices to the Profession issued by the OCJ at relevant times throughout the pandemic. They are presumably content to rely upon those Notices, the transcripts of the court appearances and any facts that I may take judicial notice of.

[127] There are certainly general facts relating to the pandemic that I am confident I may take judicial notice of. Judicial notice dispenses with the need for proof of facts that are uncontroversial or beyond reasonable dispute. The facts must be either so notorious or generally accepted that they are not debated among reasonable persons, or they must be capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. See R. v. Find, 2001 SCC 32 at para. 48. The social impact of the pandemic and, more particularly, its general impact on the court system are matters I may, in my view, take judicial notice of.

[128] There remain notable gaps in the evidentiary record. In particular, I have no evidence about the approach the Newmarket Crown’s office took to case-managing files adjourned due to COVID-related service interruptions. I have no case-specific information about how Mr. Khan’s matter, in particular, was managed. And I have no evidence about the conditions in the local trial co-ordinators’ office, nor any explanation as to why it may have taken them unusually long periods of time to respond to counsel’s inquiries.

[129] With those comments in mind, I will return to a consideration of the two periods of alleged exceptional circumstances. I will consider each in turn.

June 29, 2020 to April 29, 2021: The First Adjournment of the Preliminary Hearing

[130] The first period in issue spans from June 29, 2020 to April 29, 2021. The Crown seeks to deduct this entire 10-month period as an exceptional, discrete event – all due to COVID-19.

[131] I have already noted that I am satisfied that the adjournment on June 29, 2020 was due to the COVID-19 pandemic. The live question is whether the Crown and the court took reasonable steps to attenuate the delay involved in rescheduling the preliminary hearing.

[132] The first adjournment reflects a systemic problem and it required a systemic response.

[133] The systemic response is a matter of public record. And in my view, that record reflects a serious, dedicated and meaningful response to an unprecedented public health crisis.

[134] The best the court could do in the circumstances was to fix a process to tackle the backlog of adjourned cases in a manner that was fair to all of the litigants affected and which gave priority to those cases where accused persons were detained in remand facilities. And that is exactly what was done.

[135] The court was faced with months of adjourned cases. There were really only two options available. The first was to reschedule adjourned cases to open dates as though they were being scheduled for the first time (essentially “leap-frogging” over existing, scheduled cases). The second was to push all cases in the system back an equal amount of time. In other words, if the court suspended operations on March 16, 2020 and was back up to speed by July 16, 2020, the entire court calendar would need to be shifted three months.

[136] The second option may have been theoretically more fair to those parties whose cases were adjourned. That said, shifting all cases would not just have been a Herculean task. It would have been a logistically impossible one. It would have required that all counsel and witnesses were miraculously available on all of the shifted dates – something that is simply fantastical. In the result, the only reasonable option available to the court was to set rescheduled dates as though they were original set-dates. In other words, to generally fix the earliest reasonably available dates.

[137] Rescheduled cases should generally be given some priority, for obvious reasons, to the extent that they can be. That said, the landscape is significantly altered when there is a huge mass of cases that need to be rescheduled because of a systemic shut-down of unprecedented proportion. It is impossible to give each adjourned case priority. The best that can be done is to triage cases. Triaging will inevitably require that in-custody cases be given priority.

[138] Earlier I set out the manner in which the OCJ prioritized cases for rescheduling purposes for cases that were adjourned between March 16, 2020 and July 6, 2020. They established a triage/priority system and they published regular Notices to the Profession regarding the status of adjourned cases and the process to reschedule them. I consider that approach to have been entirely reasonable and, in my view, laudable. Indeed, I do not know what more could have been done.

[139] Mr. Khan’s case was one of the lower priorities because he was not in custody and his preliminary hearing had not already commenced. He was advised that his case would be eligible for rescheduling on or after September 14, 2020. His case was not, however, actually rescheduled on September 14, 2020. Indeed, it was not rescheduled until December 16, 2020. At that point it was put over to April 29, 2021.

[140] My assessment of the exceptional nature of the delay between June 29, 2020 and April 29, 2021 involves three distinct periods: June 29, 2020 to September 14, 2020; September 14, 2020 to December 16, 2020; and December 16, 2020 to April 29, 2021. I will consider each in turn.

June 29, 2020 to September 14, 2020

[141] The delay between June 29, 2020 and September 14, 2020 is, in my view indisputably deductible as an exceptional circumstance. Mr. Khan agrees. I need say no more about it.

September 14, 2020 to December 16, 2020

[142] Mr. Khan does not agree that any of the time between September 14, 2020 and the rescheduled date for the preliminary hearing – April 29, 2021 – qualifies as an exceptional circumstance. This submission amounts to suggesting that on September 14, 2020 Mr. Khan should have been scheduled to immediately commence his preliminary hearing. That is absurd.

[143] That said, to be fair to defence counsel, what he really argued is that the Crown failed to establish that they took reasonable steps to mitigate the delay after September 14, 2020. I should not, therefore, characterize any of the time between September 14, 2020 and April 29, 2021 as a discrete exceptional circumstance. I agree with defence counsel insofar as his argument relates to the period between September 14, 2020 and December 16, 2020. I do not agree with him in relation to the period after December 16, 2020.

[144] As I noted, the Notices to the Profession published July 2, 2020 and August 12, 2020 instructed that defence counsel were to file a specific form with the local trial co-ordinator to request dates for rescheduled trials and preliminary hearings. The August 12, 2020 Notice to the Profession indicated that rescheduling of dates for those in Mr. Khan’s priority classification would begin no later than September 14, 2020. Mr. Khan’s lawyer filed his form on September 7, 2020.

[145] I expect that the local trial co-ordinators’ offices were overwhelmed with rescheduling requests. At no time in the history of the courts had they been faced with the need to reschedule hundreds of cases, on top of scheduling new cases coming into the system. At the same time, they were required to adapt to rescheduling cases in different hearing environments – some in person, some by Zoom, some hybrid.

[146] That said, I have no actual evidence as to what the conditions were like in the trial co-ordinators’ office in Newmarket. I have no case-specific evidence as to why that office was unable to provide Mr. Palleschi with a response to his rescheduling form until after December 7, 2020. And I have no evidence to explain why the Crown seemingly took no steps prior to December 7, 2020 to assist in obtaining new dates for this matter, when the rescheduling protocol said those dates would start being set no later than September 14, 2020.

[147] It may be that the trial co-ordinators’ response was delayed because Mr. Palleschi waited until September 7, 2020 to submit his form. His form may have been at the bottom of a huge pile of forms, assuming the trial co-ordinators were following a “first-in, first-out” system of responding. But I can only speculate about that.

[148] In the circumstances, I am not prepared to deduct any of the time between September 14, 2020 and December 16, 2020 – a period of three months – from the overall delay.

December 16, 2020 to April 29, 2021

[149] On December 16, 2020 Mr. Khan’s preliminary hearing was rescheduled for the end of April 2021. In my view, and in my experience, a 4.5-month delay in scheduling a preliminary hearing is entirely unremarkable and consistent with Jordan expectations. There is no reason to believe that the parties did not set the earliest available date offered to them by the local trial co-ordinator in a manner consistent with the court’s rescheduling protocol.

[150] I do not consider it necessary that the Crown tender evidence that in this particular case, they fought back against the rescheduling protocol established by the court in an effort to give Mr. Khan priority over all of the other COVID-delayed cases in the system. It was not unreasonable for the Crown, along with all other impacted litigants, to adhere to the court’s protocol.

[151] In my judgment the 4.5 month period between December 16, 2020 and April 29, 2021 is deductible as relating to a discrete exceptional event.

[152] In the result, I find that the 2.5 months between June 29, 2020 and September 14, 2020 and the 4.5 months between December 16, 2020 and April 29, 2021 are deductible as exceptional events relating to COVID-19. Deducting this additional 7 months from the 39.5 months I previously calculated as net delay, reduces that net delay to 32.5 months.

April 29, 2021 to March 21, 2022: The Second Adjournment of the Preliminary Hearing

[153] The second period in issue as an exceptional event relates to the second adjournment of the preliminary hearing on April 29, 2021. Again, I am satisfied that this second adjournment was caused by COVID-19. Again, the question is whether the court and the Crown took reasonable steps to mitigate it.

[154] On April 21, 2021, the OCJ published a Notice to the Profession that began as follows:

In light of the recent increase in COVID-19 cases and its impact on hospital resources, and in order to reduce the number of people (including parties, counsel and court staff) who must leave their home to attend court proceedings, the Ontario Court of Justice is reducing the number of criminal trials and preliminary inquiries involving out-of-custody accused persons scheduled between Monday April 26, 2021 and Friday May 21, 2021:

• Between April 26 and May 7, 2021: All criminal trials and preliminary inquiries involving out-of-custody accused persons will be adjourned, subject to a judge seized with a continuing matter ordering otherwise. This applies to both in-person and virtual trials and preliminary inquiries.

• Between May 10 and May 21, 2021: All in person criminal trials and preliminary inquiries involving out-of-custody accused persons will be adjourned, subject to a judge seized with a continuing matter ordering otherwise. Virtual criminal trials and preliminary inquiries involving out-of-custody accused persons may proceed. Virtual hearings are hearings in which all participants appear using remote technology other than court staff (if required to attend in person) or the presiding judge (who may attend in person).

[155] I am not in any position to second guess the wisdom of the decision of the Chief Justice of the OCJ to take the steps outlined in the April 21, 2021 Notice to the Profession. Again, these were difficult and unprecedented circumstances. It was a public health crisis. And reasonable steps were taken, in my view, to balance public health concerns with continued, meaningful access to justice.

[156] Unfortunately, Mr. Khan’s matter was scheduled to begin in the first period subject to the April 21, 2021 Notice. A further adjournment was necessitated.

[157] One might reasonably ask whether Mr. Khan’s preliminary hearing could have proceeded over Zoom on April 29, 2021 as a means to mitigate further delay. The answer to that question is patent in the April 21st Notice. All out-of-custody trials and preliminary hearings scheduled between April 26, 2021 and May 7, 2021 were adjourned, regardless of whether they were scheduled to proceed in person or virtually.

[158] The intent, of course, was to reduce the number of people in the courthouse. It must be recognized that the vast majority of remote proceedings are not entirely remote. Even though the judge, counsel and witnesses may appear over Zoom from remote locations, the clerk of the court and the court reporter are almost always in the courtroom. The intent was to reduce the number of clerks and reporters attending the courthouse between April 26 and May 7, 2021. That reduction required the suspension of many hearings, including hearings otherwise scheduled to proceed remotely.

[159] Unlike the situation in June 2020, new dates were offered to Mr. Khan immediately on April 29, 2021. Mr. Palleschi indicated that he understood dates were being rescheduled to February 2022. He indicated that he had a conflicting matter scheduled in February 2022 and asked if Mr. Khan’s preliminary hearing could be scheduled for March 2022. He was offered March 7-8, 2022 and could not do those dates. March 21-22, 2022 were settled on.

[160] It appears from the record, therefore, that the earliest dates the court had available on April 29, 2021 were in February 2022 – nine or more months down the road. This is not surprising, given that the court was still struggling with the backlog of cases created by all of the adjournments arising from the spring and summer of 2020.

[161] As I understand Mr. Khan’s argument, his complaint is that the Crown and the court did not do enough, on April 29, 2021, to mitigate the delay. I am not sure, however, what more could have been done. The earliest available dates were offered. Could earlier dates have been found if, for instance, the Regional Senior Judge had been asked to intervene and perhaps juggle assignments? Perhaps, but that is entirely speculative. Moreover, as I noted, it is simply not feasible to “juggle assignments” when there are so many cases impacted by system-wide reductions in service.

[162] If Mr. Khan’s case was a one-off I would have serious concerns about the fact that more strenuous efforts were not made to find sooner dates after the preliminary hearing could not proceed on April 29, 2021. But Mr. Khan’s case was not a one-off. There was a significant backlog of cases in the system all jockeying for new dates.

[163] At para. 75 of Jordan, the majority spoke to the obligation of the Crown and the court to mitigate delays caused by discrete exceptional circumstances. They said that “[w]ithin reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events.”

[164] The court reiterated the reasonableness standard in R. v. Cody, as above, at para. 54, saying, “the Crown need not exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement.”

[165] Again, for the reasons I set out earlier, my view is that the emphasis with COVID-related delays should generally be on the reasonableness of the systemic response. I do not believe that the Crown needs to tender evidence to demonstrate that it fought back against the court’s rescheduling protocols in an attempt to demonstrate its own reasonable efforts at mitigating delay. There may be cases, like Coates, where the Crown’s actions make a significant difference. This is not such a case.

[166] The April 29, 2021 transcript satisfies me that everyone accepted that the earliest dates reasonably available at that time were in February 2022. This was not, in my view, an example of complacency or a failure to take reasonable steps to mitigate delay. It is a reflection of the difficult circumstances created by COVID-19. And it is the reflection of a reasonable process put in place by the court to mitigate delays.

[167] It would be impossible now to reconstruct what earlier dates might have been available if the Crown and the court took more exhaustive efforts to root out an earlier date. Again, the Crown need not prove that it exhausted every possible avenue. The standard is reasonableness. And again, I infer from the record of the April 29, 2021 hearing that all parties were satisfied at that time that February 2022 dates were the earliest reasonably available dates. They were in a better position then to know that fact than I am in now, looking at it retrospectively.

[168] I have already accounted for the 14 days between March 7, 2022 and March 21, 2022 as defence delay. I find, in the result, that the period between April 29, 2021 and March 7, 2022 – some 10.25 months – is deductible as a discrete exceptional event relating to COVID-19.

[169] Prior to this event, I had calculated net delay at 32.5 months. After deducting a further 10.25 months, I settle on a net net delay of 22.25 months.

[170] I appreciate that reasonable people may differ about whether the Crown and the court should have done more to get an earlier date for the preliminary hearing than February 2022, particularly in light of the fact that this was the second time the preliminary hearing had to be adjourned for an extended period due to COVID-19. But I have calculated net delay, as of April 29, 2021, to be at 32.5 months. That being the case, the Crown need only establish that three months of the delay between April 29, 2021 and March 7, 2022 were related to a discrete exceptional event. In my view, the notion that the cancellation of the preliminary hearing on April 29, 2021 due to a significant reduction in court operations would result in at least a three month delay in rescheduling, is uncontroversial.

Conclusion on Net Net Delay

[171] The gross delay in this case is 50.5 months. After deducting 11 months of defence delay, the net delay is, I concluded, 39.5 months.

[172] From that, I would deduct 7 months between June 29, 2020 and April 29, 2021 and a further 10.25 months between April 29, 2021 and March 7, 2022 as discrete exceptional events relating to COVID-19. What is left is 22.25 months, well below the 30-month Jordan ceiling for cases tried in this court.

[173] No argument was advanced that this case should be stayed even if the delay falls under the Jordan ceiling.

[174] In the result, the application is dismissed.

C. Boswell J.

Released: December 30, 2022.

CHRONOLOGY OF PROCEEDINGS

DATE

DESCRIPTION

November 26, 2018

Mr. Khan is arrested and charged with two counts of assault. He is released on an undertaking, with a first court appearance set for December 18, 2018.

December 18, 2018

First appearance in the OCJ in Newmarket. Disclosure is provided. Mr. Khan is encouraged to retain counsel. Adjourned to January 8, 2019.

January 8, 2019

Mr. Khan appears with duty counsel. He undertakes to attend the PARS program with an expectation that he will resolve the charges by way of a peace bond once the program is completed (estimated to be May 22, 2019).

The following significant exchange took place on the record:

THE COURT: All right. Sir, and you understand that we are putting it over this far to give you a chance to complete the PARS Program because of the anticipated resolution at the end of all of that?

ALIM KHAN: Yes. Okay.

THE COURT: You probably heard Duty Counsel speaking with others about the fact that you could have an earlier appearance or a potentially faster trial, but we are going to give additional time to allow you to complete PARS .

ALIM KHAN: Okay.

THE COURT: You understand that this will mean that your matter will not be completed as quickly so that you can participate in PARS and that is how you wish to proceed?

ALIM KHAN: Is the reason is because they don't have a PARS Program?

MR. ALGIE: No. What's happening is it. . .

ALIM KHAN: Yeah

MR. ALGIE: . . . takes time to do the counselling. So, you could ask to set a trial today and you could have a trial in a couple of weeks, but what you' re saying, "Look, I don't want to have a trial."

ALIM KHAN: Yeah.

MR. ALGIE: "I want to do the PARS Program, and I'm not going to later complain that you didn't. . . "

ALIM KHAN: Okay .

MR. ALGIE: . give me a trial right away."

ALIM KHAN: Okay . Great .

MR. ALGIE: Does that sort of make sense?

ALIM KHAN: That makes sense.

THE COURT: That is how you want to go ahead?

ALIM KHAN: Thank you .

Adjourned to March 15, 2019 for an update.

January 18, 2019

Mr. Khan is arrested and charged with three counts of sexual assault. He is again released on an Undertaking, with a first appearance date of March 5, 2019.

March 5, 2019

Mr. Khan attends court with counsel, Mr. Sheikh. He requests an adjournment to March 27, 2019 to pursue a Legal Aid Application.

Adjourned to March 27, 2019.

March 27, 2019

Mr. Khan appears with duty counsel. He has yet to obtain a Legal Aid certificate. At his request, his matters are put over to April 24, 2019.

April 24, 2019

Mr. Khan appears with counsel, Mr. Paiva, retained. At his request, his matters are adjourned to May 22, 2019 so that Mr. Paiva can review disclosure. A Crown pre-trial is expected to occur on or before the next date.

May 22, 2019

Mr. Khan appears with counsel, Mr. Paiva. Mr. Paiva requests an adjournment to June 19, 2019 for the purpose of having a Crown pre-trial. When pressed as to why that had not happened, as anticipated on April 24, 2019, Mr. Paiva advised that he had not been able to get through all of the disclosure. Adjourned to June 12, 2019.

June 12, 2019

Mr. Paiva appears by designation and sets a judicial pre-trial (“JPT”) for August 15, 2019.

August 15, 2019

Mr. Paiva again appears by designation. The JPT commenced but could not be completed because the court did not have time in the morning and Mr. Paiva had matters in another jurisdiction in the afternoon. The issue of whether the charges are eligible for a preliminary hearing is raised for the first time. It was agreed that if a preliminary hearing was to be held, it would require two days to complete.

Adjourned to August 29, 2019 for continuing JPT.

August 29, 2019

Mr. Paiva again appears by designation.

Crown and defence counsel are at odds about whether Bill C-75 has retroactive effect. If it does – the position taken by the Crown – then the charges against Mr. Khan are not eligible for a preliminary hearing. The court comments that the issue is one that must be litigated. Crown counsel advises the court that a number of applications concerning the issue are to be litigated on September 26, 2019. A decision is made to adjourn pending the outcome of the applications on September 26, 2019.

Adjourned to October 10, 2019 to be spoken to with an 11b waiver in the interim. The court expressed concern about the Jordan ceiling.

October 10, 2019

Mr. Paiva again appears by designation.

Prior to this hearing, the decision of R.S.J. Thomas in R v. R.S., 2019 ONSC 5497 was released. The decision in that case was that the elimination by Bill C-75 of preliminary hearings for certain classes of offences was procedural in nature and had retroactive effect.

Though there was a discussion about trial dates being set, the transcript does not reflect that those dates were, in fact, set on this occasion. The evidence filed by Mr. Khan on the application indicates that counsel attended at the trial co-ordinators’ office on this date and a trial date was scheduled for the week of September 14, 2020. Pre-trial motions were scheduled for June 29-30, 2020.

Adjourned to October 24, 2019 to confirm the dates.

October 24, 2019

Mr. Khan is present on this date, with Mr. Paiva as counsel, for the purpose of confirming the trial dates in his presence and confirming Mr. Khan’s election to be tried in the provincial court.

By this date, counsel were aware that the Court of Appeal was scheduled to hear an appeal in the R. v. R.S. case on October 28, 2019. It was agreed that if the Court of Appeal found that Bill C-75 did not have retroactive effect, the dates set for the pre-trial motions would be converted to a preliminary hearing.

On the suggestion of the court, Mr. Khan was adjourned to November 28, 2019 for the purpose of making his election, with the hope that the Court of Appeal’s decision in R. v. R.S. would be released prior to that date.

November 28, 2019

Mr. Khan appeared with duty counsel.

On November 18, 2019, the Court of Appeal released its ruling in R. v. R.S., reported at 2019 ONCA 906. Doherty J.A. held that for cases impacted by Bill C-75, where a preliminary hearing had been elected prior to September 19, 2019, the accused would remain entitled to a preliminary hearing. Though Mr. Khan had not actually made his election prior to September 19, 2019, he had clearly evinced an intention to elect to have a preliminary hearing prior to that time and the court proceeded on the basis that his case was eligible for a preliminary hearing.

Mr. Khan indicated his election was to have a preliminary hearing and to be tried by a judge and jury in the Superior Court of Justice.

Adjourned to January 22, 2020 to confirm the dates for the preliminary hearing.

January 22, 2020

Mr. Khan has, by this date, retained Mr. Palleschi to replace Mr. Paiva. Mr. Fortini appears as Mr. Palleschi’s agent on this date, by designation.

Mr. Fortini requested that the September 2020 trial dates be vacated and that the June 29-30, 2020 motion dates be converted to preliminary hearing dates.

Adjourned to March 3, 2020 for the purpose of making an election (even though one appears to have been made on November 28, 2019) and to file a statement of issues and witness list.

March 3, 2020

Mr. Palleschi appearing by designation for Mr. Khan.

Justice Rose expressed concern that Mr. Khan’s election was made November 28, 2019 and he was therefore not eligible for a preliminary hearing based on the Court of Appeal’s ruling in R. v. R.S. He left the June 29-30, 2020 dates in place as well as the trial dates set for September 2020 and traversed the matter to March 12, 2020 for a further JPT before Justice Ghosh, who had conducted the initial JPT.

March 12, 2020

Mr. Palleschi again appearing by designation.

Mr. Palleschi filed Mr. Khan’s notice of election to have a preliminary hearing and be tried by a judge and jury in the Superior Court. The preliminary hearing was confirmed for June 29-30, 2020.

June 29, 2020

As a result of the onset of the COVID-19 pandemic, the preliminary hearing could not be conducted as scheduled. It was traversed to a presumptive adjournment date of September 14, 2020 to be spoken to. No one appearing for Mr. Khan.

September 14, 2020

In the face of continuing limitations on the court’s operations due to COVID-19, the case was traversed to a further presumptive adjournment date of October 19, 2020. No one appearing for Mr. Khan.

October 19, 2020

Adjourned to November 2, 2020 for Crown counsel to follow up with Mr. Palleschi. No one appearing for Mr. Khan.

November 2, 2020

No one attending for Mr. Khan. Counsel’s father had recently passed away and he was unavailable.

Adjourned to December 7, 2020 for a further JPT.

December 7, 2020

Mr. Palleschi appearing by designation.

The court had instituted a system for rescheduling matters. In adherence to that system, Mr. Palleschi had delivered a form to the local trial co-ordinators’ office requesting new dates for the preliminary hearing, but had not heard back yet.

Adjourned to January 7, 2020 to await a response from the trial co-ordinators.

December 16, 2020

Mr. Palleschi by designation.

The matter appears to have been brought forward for the purpose of fixing new preliminary hearing dates. Those dates were fixed for April 29-30, 2021.

Adjourned to April 19, 2021 as a confirmation date for the preliminary hearing.

April 19, 2021

Mr. Palleschi by designation.

Dates confirmed for the preliminary hearing. Adjourned to April 29, 2021.

April 29, 2021

Mr. Palleschi by designation.

Once again, due to limitations on the court’s operations caused by COVID-19, the preliminary hearing could not proceed on the dates scheduled.

The court was setting new dates in February 2022, but defence counsel was not available at that time. The preliminary hearing was accordingly re-scheduled for March 21-22, 2022.

March 14, 2022

Preliminary hearing dates confirmed as ready to proceed.

March 21-22, 2022

Mr. Palleschi by designation.

Mr. Palleschi was unwell and could not proceed. The preliminary hearing dates were vacated. In the meantime, the presiding justice directed that Mr. Khan must order the transcripts that will confirm that a de facto election to have a preliminary hearing was made prior to September 19, 2019. The court expressed frustration with the delays.

Adjourned to April 1, 2022 to be spoken to.

April 1, 2022

Mr. Palleschi by designation.

Mr. Palleschi produced the transcripts needed to confirm a de facto election was made prior to September 19, 2019.

Adjourned to a “blitz” scheduling court on April 7, 2022 to schedule a new date for what was now estimated as a one day preliminary hearing.

April 7, 2022

Mr. Palleschi by designation.

The preliminary hearing is rescheduled to May 30, 2022 for one day.

May 16, 2022

Mr. Bahia as agent for Mr. Palleschi, by designation.

Preliminary hearing date confirmed.

May 30, 2022

Preliminary hearing conducted. Mr. Khan is committed to stand trial on all counts in the information.

Adjourned to July 27, 2022 for a JPT in the Superior Court of Justice.

July 27, 2022

JPT held. Dates were scheduled in the Superior Court as follows: April 6, 2023 for a one day records motion and April 17, 2023 for a two week jury trial with a challenge for cause.

Adjourned to August 15, 2022 to continue the JPT.

August 15, 2022

JPT continued. Due to s. 11b concerns, the April 2023 dates were vacated. Mr. Palleschi indicated that Mr. Khan was prepared to re-elect to have his trial before a judge alone. A new trial date was scheduled for the week of February 6, 2023, now one week in duration. Earlier trial dates were offered in October and November 2022 and January 2023 but were not available to the defence.

August 31, 2022

JPT continued. Mr. Khan re-elects to judge alone. A motion was scheduled for December 7, 2022 for an 11b application and December 20 and 22, 2022 for stages one and two of a records application.

The records motion was subsequently abandoned.